Federal Court of Australia

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CRS20 [2022] FCA 579

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of the appeal as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J:

The notice of appeal and notice of contention

1    Both the appellant (the Minister) and the first respondent (the applicant below) contend, by notice of appeal and notice of contention respectively, that the primary judge erred in CRS20 v Minister For Immigration, Citizenship, Migrant Services And Multicultural Affairs & Anor [2021] FedCFamC2G 189 (primary judgment or PJ).

2    The Minister contends that the primary judge ought to have rejected the first respondent’s claim that the decision of the second respondent, the Immigration Assessment Authority (IAA), of 25 May 2020 was invalid by reason of a reasonable apprehension of bias.

3    The first respondent contends that the primary judge ought to have accepted his claim that the IAA decision was invalid by reason of either a failure to consider the first respondent’s claim that he was stateless or that the IAA’s finding that the first respondent was an Iranian citizen was legally unreasonable.

4    I consider both parties are correct. The primary judge ought to have rejected the first respondent’s claim that the IAA decision of 25 May 2020 was vitiated by a reasonable apprehension of bias. The primary judge ought to have accepted the first respondent’s claim that the IAA’s finding that the respondent was an Iranian citizen was legally unreasonable, with the consequence that the IAA had failed to consider the first respondent’s claim to fear persecution if returned to Iran on the basis he is a stateless Faili Kurd.

5    The result is that the primary judge’s orders should not be disturbed and the Minister’s appeal should be dismissed.

Background

6    The first respondent, who was born in Iraq and claimed to be a stateless Faili Kurd, arrived in Australia as an unauthorised maritime arrival in 2012.

7    The first respondent applied for a safe haven enterprise visa (a form of protection visa) in 2016.

8    A delegate of the Minister refused to grant the first respondent a protection visa in October 2017.

9    The IAA affirmed this decision in November 2017 (the first IAA decision).

10    The first respondent applied for judicial review of the first IAA decision and the Court below rejected that application: FSG17 v Minister for Home Affairs & Anor [2019] FCCA 2050; (2019) 347 FLR 151 (the first Federal Circuit Court judgment).

11    The first respondent appealed and the Full Court of this Court allowed the appeal and set aside the first IAA decision: FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; (2020) 274 FCR 456 (the Full Court judgment or FSG FCAFCJ).

12    The Full Court allowed the appeal on the basis that the first IAA decision was affected by both a reasonable apprehension of bias and legal unreasonableness in respect of the first respondent’s claim of statelessness.

13    The reasonable apprehension of bias arose in FSG FCAFCJ because, in discharging the function under s 473CB(1)(c) of the Migration Act 1958 (Cth) (the Migration Act), the Secretary considered to be relevant, and provided the IAA with, irrelevant and highly prejudicial material. The material is described as follows by the Full Court at FSG FCAFCJ [14]:

It is common ground that amongst the material provided to the Authority by the Secretary was a document titled “Court Attendance Notice” which appeared to have been issued early on 23 September 2016 and required the appellant to attend the Bankstown Local Court at 9.30am that day. The document indicated that the appellant had been arrested the previous evening and charged under s 66EA of the Crimes Act 1900 (NSW) with persistent sexual abuse of a child. The particulars of the charge were that the appellant had a sexual relationship with a minor over a three year period from 1 August 2013 until 11 March 2016. It can be inferred from the document that the attendance at the Bankstown Local Court was to consider bail. The “Fact Sheet” that formed part of the document, prepared by the New South Wales Police, detailed an allegation that the appellant had met the victim by arrangement at a train station when she was 13 years old and a ward of the State; their sexual relationship continued over three years in circumstances where the appellant knew that the victim was under 16 years of age for most of that time; and the appellant had terminated the relationship in July 2016.

14    The Full Court said at FSG FCAFCJ [38]:

In the present case, we consider that the Court Attendance Notice contained information of a highly prejudicial kind. The information was that the NSW police alleged and brought charges against the appellant of a most serious kind, involving an alleged contravention of s 66EA of the Crimes Act 1900 (NSW). As noted earlier, the particulars of the charge were that the appellant had a sexual relationship with a minor (a girl of 13 who was a ward of the State) over a three year period from 1 August 2013 until 11 March 2016. We accept the appellant’s submission that the allegation is highly prejudicial because it involves sexual offending against a vulnerable person, a young girl who is a ward of the State, over a lengthy period of time. While recognising that the information involves an allegation only and the appellant is entitled to a presumption of innocence, in our view a fair-minded lay observer might reasonably apprehend that the Authority might not bring an impartial mind to its decision by reason of being informed of the information. The observer might consider that the individual decision-maker might consciously or subconsciously form an adverse view of the appellant’s character, inclining the decision-maker to the view that the appellant is not a person to whom the benefits of a visa should be extended.

15    At FSG FCAFCJ [39] the Full Court acknowledged that:

In its reasons for decision, the Authority identified the prejudicial information, cogently explained why the information was irrelevant to the decision and stated that the Authority would disregard the information in making its decision. The question that arises is whether the apprehension of bias that arises by reason of the Authority receiving and considering the information is assuaged by those statements in the Authority’s reasons.

16    At FSG FCAFCJ [42] and [44] the Full Court concluded that:

In the present case, we consider that the information is of such a prejudicial kind that a fair-minded lay observer might reasonably consider that it would be difficult for the decision-maker to put the information out of his or her mind in determining whether to grant a visa. In other words, a fair-minded lay observer might reasonably consider that the information is of a kind that might subconsciously affect the Authority’s approach to the decision, notwithstanding that the Authority consciously endeavoured to disregard the information.

…

In the context of a review under Part 7AA of the Act, if highly prejudicial but irrelevant information is given to the Authority, procedural fairness may demand more than the Authority merely disavowing reliance on the information. If the information is sufficiently prejudicial, and the person affected by the decision is not informed of the information or given an opportunity to respond to it, procedural fairness may require the individual decision-maker exposed to the information to recuse themselves. That will not be required in every case. But in our view, it was required in this case.

17    The legal unreasonableness arose in FSG FCAFCJ because the first respondent had claimed he was at risk of harm as a stateless person in Iran. While the delegate had accepted the first respondent was stateless, in the first IAA decision the IAA concluded that the first respondent had likely become a citizen of Iran at some time prior to 2003. The basis for this conclusion in the first IAA decision was the evidence in a Department of Foreign Affairs and Trade (DFAT) report that “some Faili Kurd refugees… who present documentary evidence of Iranian paternal ancestry are able to obtain Iranian citizenship, although it can be difficult for many to establish evidence of such Iranian ancestry”. However, there was no evidence that the first respondent had Iranian paternal ancestry. The first respondent claimed that his father and paternal grandfather were born in Iraq, and there was no evidence or finding to the contrary: FSG FCAFCJ [54].

18    The Full Court accepted that the IAA’s reasoning process was unreasonable as an important step in it was logically unsound: FSG FCAFCJ [61]. Their Honours continued at FSG FCAFCJ [62]–[63]:

In reaching its conclusion, the Authority referred to and took into account a DFAT report which indicated that Faili Kurd refugees who present documentary evidence of Iranian paternal ancestry are able to obtain Iranian citizenship (at [26]). In context, it is clear that the Authority referred to the DFAT report to answer the question whether it was possible, under Iranian law, for a Faili Kurd refugee to become an Iranian citizen. That enquiry was logically necessary for the Authority to reach a conclusion that the appellant had become an Iranian refugee. However, there was no evidence that the appellant had Iranian paternal ancestry. The appellant claimed that his paternal ancestry was Iraqi and there was no evidence inconsistent with that claim. The Authority made no finding to the contrary. Accordingly, the Authority’s apparent reliance on the DFAT report to answer the question whether it was possible, under Iranian law, for a Faili Kurd refugee to become an Iranian citizen was illogical. The parts of the DFAT report relied on by the Authority were irrelevant to the appellant’s circumstances and therefore could not answer that question.

The Minister submitted that the Authority’s conclusion on statelessness was not irrational because other factual matters relied on by the Authority (referred to above) were sufficient to support its conclusion. We reject that submission. It can be accepted that the Authority relied on a number of factual matters in reaching its conclusion on statelessness. However, it is apparent that, as part of its reasoning process, the Authority thought it necessary to consider the question of the legal process by which the appellant may have become an Iranian citizen. On the face of the Authority’s reasons, that aspect of the Authority’s reasoning process was essential to its conclusion on statelessness. That being the case, it is not open to ignore that aspect of the Authority’s reasons. The legal unreasonableness in that finding undermined the Authority’s conclusion on statelessness.

19    The Full Court set aside the orders consequential on the first Federal Circuit Court judgment. The Full Court ordered, relevantly:

(a) A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 27 November 2017 (case number IAA17/03806).

(b) A writ of mandamus issue directed to the second respondent requiring it to determine, according to law, the application made to it by the appellant for review of the decision of a delegate of the first respondent made on 19 October 2017 under s 65 of the Migration Act 1958 (Cth).

20    In accordance with these orders, the first respondent’s review application was referred to a differently constituted IAA.

21    It is common ground that the differently constituted IAA was not provided with the material referred to in FSG FCAFCJ at [14]. However, the differently constituted IAA was provided with the first Federal Circuit Court judgment and the Full Court judgment (that is, FSG FCAFCJ). The First Federal Circuit Court judgment also refers to the irrelevant and prejudicial material in [44]–[49].

22    In a letter dated 6 May 2020 to the first respondent the IAA said:

As noted in your representative’s email dated 1 May 2020, the decisions of the previous IAA reviewer, the Federal Circuit Court and the Federal Court of Australia relating to your matter contain references to, and general descriptions of, material which the Federal Court of Australia deemed highly prejudicial and irrelevant to the assessment of your protection claims.

The material itself has not been referred for the IAA’s consideration in this fresh review (IAA20/08188). It does not form part of the review material. It is not before the IAA. As for the references and descriptions of the material in the previous IAA decision and the Courts’ decisions, the IAA does not consider it to be relevant and does not intend to consider it. Nevertheless, and having regard to the Federal Court of Australia’s observations at paragraph 44 of its decision, the IAA is providing you with the opportunity to comment on this approach.

You are invited to give written comments on these issues and the IAA’s intended approach. Your comments must be received at the IAA by 11 May 2020.

23    In a response dated 8 May 2020 the representatives for the first respondent said:

2. As stated in the IAA’s letter, this material has been deemed irrelevant and highly prejudicial by the Federal Court of Australia (FCA). As the material, including references in the IAA, Federal Circuit Court (FCC) and FCA decisions (which specify the prejudicial material in detail), will prejudice the current Reviewer, it is not [the respondent’s] interests to respond to this material which is irrelevant to his case. However, for the same jurisdictional error not to occur, the IAA must provide assurances as outlined below.

3. Firstly, the IAA’s response does not clarify whether the Reviewer who is assessing [the respondent’s] current matter before the IAA is a different person to the Reviewer, Patricia Tyson, who assessed [the respondent’s] first IAA matter (IAA17/03806). We request the IAA to confirm whether a different Reviewer is assessing [the respondent’s] current IAA matter.

4. Further, the IAA has not indicated whether the Reviewer assessing [the respondent’s] current matter has reviewed and/or can access material in [the respondent’s] previous IAA matter, including his previous IAA, FCC and FCA decisions. Without an assurance from the IAA that the current Reviewer for [the respondent’s] matter has not accessed and cannot access this material, we have serious concerns that the same jurisdictional error made in [the respondent’s] first IAA matter will be made again. We request the IAA to confirm whether the Reviewer assessing [the respondent’s] current IAA matter has reviewed and/or can access material in [the respondent’s] previous IAA matter including past decisions.

…

9. We note that we intend to provide a response to the country information raised in the IAA’s letter and will respond to the irrelevant material issue once we receive a response from the IAA to this letter.

24    The IAA responded on 8 May 2020 as follows:

We have received your letter dated 8 May 2020.

As previously noted, any comments/information are due by 11 May 2020, after which a decision may be made at any time.

25    On 11 May 2020 the representatives for the first respondent lodged a submission which, amongst other things, indicated that a further submission was to be lodged. A further submission was lodged on 14 May 2020. That letter, amongst other things, repeated that:

2. We note our concerns raised in our letter dated 8 May 2020 regarding the IAA's suggested approach in relation to the prejudicial and irrelevant material concerning [the respondent]. We intend to provide further information about this issue once we receive a response from the IAA to our letter dated 8 May 2020.

26    The differently constituted IAA decided on 25 May 2020 to affirm the delegate’s decision not to grant the first respondent a protection visa (the second IAA decision).

27    The second IAA decision included the following about the irrelevant and prejudicial information:

Information before the IAA

4. Apart from certain irrelevant material discussed below, I have had regard to the material (‘the review material’) given by the Secretary under s.473CB of the Migration Act 1958 (the Act).

Irrelevant material

5. Both the FCCA and FCA decisions in respect of the previous IAA decision on the applicant’s matter contain references to, and general descriptions of, certain material which had been given by the Secretary under s.473CB but was deemed by the FCA to be prejudicial and irrelevant to the assessment of the applicant’s protection claims. The FCA found in this instance that the material of concern was sufficiently prejudicial such that rather than merely disavowing reliance on the information, procedural fairness may require the applicant be informed of the information or given an opportunity to respond to it.

6. The material of concern is not before me as the Secretary has not given it to the IAA for the purposes of this present review; but the FCCA and FCA decisions are before me.

7. On 1 May 2020 the applicant’s representative wrote to the IAA referring to the IAA’s previous decision, FCCA and FCA judgments and requesting information about the IAA’s approach in the present review. On 5 May 2020 the IAA wrote to the applicant via his representative advising that the material of concern has not been referred to the IAA and does not form part of the review material in the present review; and in so far as the material is referenced and described in the court judgments (which in turn refer to the IAA’s previous decision), the IAA does not consider it to be relevant and does not intend to consider it. Nevertheless, and having regard to the FCA’s observations at paragraph 44 of its judgment, the IAA invited the applicant to comment on these issues and its intended approach. It also invited the applicant to provide comments/new information in relation to some new country information it obtained from the Australian Department of Foreign Affairs and Trade (DFAT) and the United Kingdom Home Office (UKHO).

8. On 8 May 2020 the applicant’s representative responded in a letter stating that it is not in the applicant’s interests to comment on material which is irrelevant to his case. The representative raised a number of concerns about the current IAA Reviewer’s access to the previous IAA file and decision of the IAA, FCCA and FCA, about the IAA’s ability to separate material from the previous review, and ultimately, about the possibility of the same jurisdictional error being made again. The representative also raised concerns about the timeframe given to respond and requested the IAA delay its decision. She advised they intended to respond to the IAA’s invitation regarding the country information, and would respond to the irrelevant material “once we receive a response from the IAA to this letter”. The IAA responded the same afternoon confirming receipt of the representative’s letter and reiterating that any comments/information were due on 11 May 2020.

9. On 12 and 14 May 2020 the representative provided further submissions to the IAA responding to the invitation to comment on country information and providing new information. Both submissions note their intention to provide further information about the prejudicial and irrelevant material “once we receive a response from the IAA” addressing their concerns raised in their letter of 8 May 2020.

10. I have considered the concerns raised by the representative, however I am satisfied they have had an opportunity to comment on the issues relating to the prejudicial material and the IAA’s intended approach. The Secretary has not provided the “prejudicial material” that was provided to the first Reviewer; it is only the court decisions that are before me, which refer to this material and the previous IAA decision. To the extent that the court judgments refer to the prejudicial material and the previous IAA decision, it is in the context of general descriptions and is not the actual material itself, and in any event, I consider the information irrelevant to the applicant’s credibility, his claims for protection and my assessment. In making my assessment, I have disregarded the irrelevant and prejudicial information previously given to the IAA, as described in the courts’ judgments, and I have also disregarded the decision of the first Reviewer, which was quashed by the FCA and which I consider irrelevant to this review. The applicant and his representative have had opportunities to respond to the IAA on this matter and the IAA has been clear in communicating that a decision may be made at any time after 11 May 2020. I do not consider their repeated refusal to respond to the invitation or any other circumstances relating to the matter warrant further consideration of this issue, or further delays in making a decision on the substantive case.

28    In the second IAA decision the IAA also reasoned in these terms (amongst others) about the first respondent’s claim to be stateless (excluding footnotes):

48. The applicant claims he never became an Iranian citizen and there is no positive evidence before me establishing that he did acquire citizenship or nationality and according to DFAT, the actual number of those who have succeeded in obtaining Iranian nationality is believed to be low due to the lengthy and complicated process and the high costs involved. However DFAT gives no guidance as to its reference and I note DFAT also states the numbers of registered and unregistered Faili Kurds in Iran is difficult to determine with any accuracy. The country information before me indicates it has been possible, under Iranian law, for Faili Kurd refugees to attain it and there are estimates from credible academic reporting suggesting that even by 2003 Iran had granted citizenship to up to 100,000 Faili Kurds with Iranian lineage. In addition to having Iranian paternal ancestry, citizenship can be acquired through marriage, and (since 2006) by maternal descent for those who turn 18 having been born in Iran to Iranian mothers. Additionally, eligibility has arisen through naturalisation for those who are at least east 18 years of age, have resided in Iran for five years, are not military service escapees, have not been convicted of a major crime in any country. According to DFAT however, most refugees find themselves unable to meet the additional requirements of naturalisation: having sufficient qualifications or capital to invest in and run a business in Iran.

49. The possibility of citizenship and the available pathways was noted by the delegate and is not a new issue in this review. The applicant’s representative has made submissions to the IAA on the matter, which I have considered. I also take into account the applicant’s difficulty, beyond his own evidence, of proving an absence of documentation going to a lack of nationality.

50. However, having considered the applicant’s evidence overall, it is my view that he does not present as someone who has a lived adult experience of being a stateless registered or unregistered refugee in Iran. My concerns with the applicant’s evidence are multifaceted and significant. His evidence on his claimed refugee registration cards, work and financial circumstances has been plagued by internal inconsistencies, vague evidence and documents of questionable authenticity and his claims of detention by the Basij were unconvincing. And while he claims he had to travel out of Iran on a fake Iraqi passport, when questioned in the SHEV interview he expressed uncertainty as to whether it was a passport of Iraqi nationality. Given the significance of the event, and noting the country information before me commenting on the security controls at Tehran airport where he would have had to have passed through pretending to hold Iraqi citizenship, I do not find it plausible he would not be able to recall this basic detail or that he departed using a fake Iraqi passport. Overall, I do not find him to be a credible witness as to matters of his status and experiences arising from such in Iran, nor the circumstances of his departure.

51. While I accept the applicant was once a stateless Faili Kurd and registered refugee in Iran and accept his 2001 white card to be evidence of this, I am not satisfied this was the applicant’s status for at least the last several years that he lived there. I am not satisfied the applicant was still stateless after he moved to Qom or that he ever lived there as a registered, unregistered, or undocumented refugee.

52. I cannot, with any certainty, determine which of the four possible pathways to Iranian citizenship the applicant may have taken but I relevantly note a conspicuous absence of any documentary evidence of his or his parents’ or grandparents’ birthplace and while this may be explained by the circumstances of exile from Iraq nor has he provided evidence of his mother’s status in Iran. And as noted above, I am not persuaded that his financial circumstances were as claimed. Overall, the applicant has not satisfied me that he is stateless, or that he left Iran on a fraudulently obtained Iraqi passport. He has not satisfied me that he was ineligible for citizenship, or ultimately, that his claim of denial of Iranian citizenship is credible. In light of all this, I have reached the conclusion that at some point before he left Iran, the applicant became an Iranian citizen.

The primary judge’s reasons

29    The first respondent applied for judicial review of the second IAA decision.

30    In carefully considered and comprehensive reasons the primary judge concluded that the reasonable apprehension of bias ground had to be allowed:

29    Although it is true that the irrelevant information that was before the second IAA (and the subject of a referral by the Secretary under s.473CB(1)(c) of the Act) was the information captured in the Court decisions, rather than the information constituted and captured by the Court Attendance Notice (and its related documents), it was nonetheless information that objectively warranted the label of ‘highly prejudicial’…

…

36     …it is also relevant in the particular circumstances of this case that, as events transpired, the applicant did not provide any information to the IAA concerning the irrelevant information with the result that its highly prejudicial character was not diminished…

37     Having considered all of the relevant circumstances in this case and notwithstanding the presence amongst them of factors that might in other cases, operate to ameliorate the apprehended impact of irrelevant information on the statutory review, I have concluded that the powerfully prejudicial nature of the irrelevant information that was referred to the IAA makes a conclusion of apprehended bias irresistible. I have reached this view notwithstanding the undoubted absence of logical connection between that information and the questions which the IAA was statutorily required to determine. This is simply an acknowledgement that in this particular case, a fair-minded and appropriately informed observer might reasonably apprehend that the IAA might not bring a fair, impartial and independent mind to the determination of the matter on its merits because the irrelevant information was capable of operating on the subconscious in a manner that subverted rational or logical analysis.

31    As noted, the Minister appeals against the setting aside of the second IAA decision on this ground.

32    The primary judge also dealt with the failure to consider ground in these terms:

47    …contrary to the applicant’s contention, the IAA rejected the applicant’s claim of statelessness having regard to its assessment of a range of considerations relating to what the IAA characterised as the applicant’s ‘lived adult experience of being a stateless registered or unregistered refugee in Iran’, rather than as principally reflecting and being responsive to a finding that the applicant had obtained Iranian citizenship. The adverse view taken of the applicant’s account and claim of being stateless was informed by a variety of matter, identified at paragraph [50], but explored comprehensively in earlier paragraphs of the IAA’s reasons, especially at [39]-[47] (CB 900-904). The concerns were directed at document authenticity and inconsistencies in the applicant’s account of his time in Iran, as measured against his own evidence and evaluated against country information that was before the IAA.

33    As noted, the first respondent contends that the primary judge should have made the order setting aside the IAA’s second decision also on this ground.

Reasonable apprehension of bias

34    The principles relating to a reasonable apprehension of bias are clear. In the present context there will be such a reasonable apprehension if a fair-minded lay observer properly informed as to the nature of the procedure for which Pt 7AA of the Migration Act provides might reasonably apprehend that the IAA might not bring an impartial and unprejudiced mind to the resolution of the factual and legal questions that arise for its decision in the conduct of a review: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 (CNY17 HCA) at [17].

35    If the Secretary provides irrelevant material to the IAA under s 473CB(1)(c) of the Migration Act, then “the totality of the circumstances that exist at the time when that question arises” are relevant to whether a reasonable apprehension of bias arises: CNY17 HCA at [20]. If the provision of that material does not suggest an “instruction, advice or opinion” of the Secretary to the IAA, but instead is said to give rise to a reasonable apprehension of bias by operation of subconscious effect, then “the hypothetical fair-minded lay observer can be expected to be more circumspect”: CNY 17 HCA at [26].

36    As various cases demonstrate (including CNY 17 HCA, CNY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1568 (CNY FCA), FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; (2020) 274 FCR 456, MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; (2021) 284 FCR 152), relevant considerations in the case of an alleged subconscious effect of irrelevant material include, at the least:

(1)    the nature of the material and whether it is irrelevant;

(2)    the kind and extent of prejudice the irrelevant material might involve;

(3)    the nature of the decision-maker;

(4)    remarks made by the decision-maker during the course of a hearing;

(5)    remarks made by the decision-maker in the reasons for decision as to what the decision-maker has done with the irrelevant material (but not self-serving disavowals of any possible apprehension of bias); and

(6)    whether the affected person was informed about the existence of the irrelevant information and given a reasonable opportunity to comment on it.

37    As the High Court emphasised in CNY 17 HCA at [21] (citing Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at [11]), in deciding if the alleged reasonable apprehension of bias is made out, “it is the court’s view of the public’s view, not the court’s own view, which is determinative”. That is, the court decides if it considers the fair-minded lay observer properly informed as to the nature of the procedure for which Pt 7AA of the Migration Act provides might reasonably apprehend that the IAA might not bring an impartial and unprejudiced mind to bear on the required review exercise in all of the apparent circumstances. The court does not decide if it (the court) reasonably apprehends that the IAA might not bring an impartial and unprejudiced mind to bear on the required review exercise in all of the apparent circumstances. This distinction is important because the relevant standard for justice being seen to be done is that of the fair-minded lay observer properly informed about the nature and substance of the required decision-making process. It is not the standard of a judicial decision-maker who is routinely presented with, and expected to discard, irrelevant and potentially highly prejudicial material.

38    Against that background, two arguments for the Minister can readily be rejected.

39    In appeal ground 1.1 the Minister asserts that the differently constituted IAA could not undertake its review without reading the first Federal Circuit Court judgment or the Full Court judgment.

40    Properly characterised, this is an argument based on necessity. There is a doctrine of necessity that operates as an exception to the rules about bias (presumably, both actual and apprehended bias). The doctrine has been described as follows in Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at [39]:

The second reason for rejecting the appellant’s case is that, in any event, even if, contrary to the view which we have expressed, there be a case for holding that a reasonable apprehension of bias attaches to all the members of the Tribunal, the operation of the rule of necessity would ensure that the Tribunal is not disabled from performing its statutory functions. The rule of necessity permits a member of a court who has some interest in the subject-matter of the litigation to sit in a case when no judge without such an interest is available to sit: Dimes v. Proprietors of Grand Junction Canal (1852) 3 HLC 759, at pp 787–788 (10 ER 301, at p 313). The existence of the principle has been recognized in this Court by Isaacs J. in Dickason v. Edwards (1910) 10 CLR 243, at p 259, and by Brennan and Deane JJ. in Builders’ Registration Board of Queensland v. Rauber (1983) 57 ALJR 376, at pp 385–386, 392. In the latter case, Brennan J. had no hesitation in holding that the principle applied to a statutory tribunal as well as to a court: see pp 385–386. And Deane J. acknowledged that this might be so: see p 392. The conclusion reached by Brennan J. upon this point conforms to principle and to received opinion in other common law jurisdictions: see the citations in Rauber, at pp 385–386, 392. The rule of necessity gives expression to the principle that the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which sets up a tribunal and requires it to perform the statutory functions entrusted to it. Or, to put the matter another way, the statutory requirement that the tribunal perform the functions assigned to it must prevail over and displace the application of the rules of natural justice. Those rules may be excluded by statute: Twist v. Randwick Municipal Council, at pp 109–110, 112 et seq., 118–119; Salemi v. MacKellar (No. 2) (1977) 137 CLR 396, at pp 401, 442; FAI. Insurances Ltd. v. Winneke (1982) 151 CLR 342, at pp 348–349, 362–363.

41    See also the discussions relating to necessity in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6], [12], [40], [63]–[65], [102]–[103], [130], [172], [178]–[179], [183].

42    It is clear from the discussions in Laws and Ebner that the doctrine of “necessity” as an exception to the bias rule means that if the decision-making body cannot perform its functions as required without falling foul of the bias rule then the function must still be performed irrespective of the bias. The criterion is strict necessity, not mere convenience or practicality.

43    It may be accepted that a fundamental aspect of the rule of law is that tribunals and inferior courts are bound to apply the law as determined by the relevant court. For this reason, in CNY FCA at [36] I said that:

… the fair-minded lay observer would be taken to understand that where a court makes an order setting aside a decision as unlawful, it is necessary that the decision-maker, on making the decision again, should comply with the law as determined by the court… It follows that the fair-minded lay observer would be taken to understand that, in the ordinary course, it would be proper for the Secretary to consider that a judgment identifying illegality in a previous decision by the IAA about a person was relevant to the review in order to ensure that the IAA, in making the decision again, did not make the same error.

44    This does not mean that in order to make a decision in accordance with law on the remittal of a matter it is necessary, in the sense required by the doctrine of necessity as an exception to the bias rule, that the differently constituted IAA be provided by the Secretary (under s 473CB(1)(c) of the Migration Act) with a copy of the judgment or judgments identifying the legal error which vitiated the first decision of the IAA. That course of action may be convenient, it may be desirable, but it is not necessary in the sense required to operate as an exception to the rule against bias. This is why in CNY FCA at [37] I said that:

…where a judgment concerns only the apprehension of bias by reason of the provision to the IAA of irrelevant prejudicial material and nothing else, the prudent administrative course would be for the Secretary not to provide that judgment to the IAA for the purpose of the new review. This is because it may be that the judgment identifies the irrelevant prejudicial material in such a way that the real possibility of a potential subconscious effect of the material in the judgment on the decision-making of the IAA might not be able to discounted.

45    It is implicit within this observation that I consider that it will not always be necessary or even administratively prudent for the Secretary to provide the IAA with a judgment about the same applicant under s 473CB(1)(c) of the Migration Act. I was not saying, however, that if the Secretary did provide the IAA with a judgment about an applicant which did nothing but deal with apprehended bias issues vitiating an earlier IAA decision, then the differently constituted IAA would itself be infected by the apprehended bias. That question must be determined on the facts in the totality of the relevant circumstances.

46    The key point for present purposes is that I do not accept that in the context of the provision of information by the Secretary to the IAA under s 473CB(1)(c) of the Migration Act, the doctrine of necessity operates so that every judgment may or must be provided by the Secretary to the IAA without any risk of a vitiating reasonable apprehension of bias arising. Putting it another way, and contrary to ground 1.1 of the notice of appeal, the differently constituted IAA could have undertaken its review lawfully without reading the first Federal Circuit Court judgment or the Full Court judgment.

47    Two other observations about ground 1.1 should be made.

48    First, there is a difference between the Secretary providing material to the IAA under s 473CB(1)(c) of the Migration act and the IAA otherwise becoming aware of information in the course of its functions. Under s 473CB(1)(c) the Secretary is to give to the IAA “any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”. That is, s 473CB(1)(c) involves the Secretary exercising a specific function in respect of a specific “fast track reviewable decision” relating to a specific applicant. It is a function exercised by reference to the Secretary considering the information to be relevant to the review. This is a different context for an alleged reasonable apprehension of bias than, for example, a case where the IAA, in the ordinary course of informing itself generally about legal developments, becomes aware of a judgment. There are numerous reasons why the context is different in a way which would be likely to affect the question of a reasonable apprehension of bias arising including that:

(1)    if the Secretary provides the material under s 473CB(1)(c) it reflects the Secretary’s view that the material is relevant to the specific applicant;

(2)    if the Secretary provides the material under s 473CB(1)(c) then, by s 473DB(1), the IAA must review a fast track decision “by considering the review material provided to the Authority under section 473CB”;

(3)    it is apparent that the IAA deals with applicants by their name rather than by the pseudonym which they are given in Court proceedings. As such, the IAA will not necessarily know that a judgment relates to a particular applicant unless the Secretary has provided the IAA with the judgment under s 473CB(1)(c); and

(4)    the fair-minded and properly informed lay observer would be taken to understand that in the ordinary course the IAA must keep itself generally informed about the development of the law including by reading judgments relevant to its functions.

49    It follows that the mere fact that the IAA may have obtained or an IAA reviewer read a judgment in the general course of its functions is not the same as the Secretary providing the judgment to the IAA under s 473CB(1)(c) as specifically relevant to the particular fast track review decision. The former fact also does not necessarily immunise the latter from an allegation of a reasonable apprehension of bias.

50    Secondly, the respondent proposed that the Minister’s contention of necessity was also answered by the fact that if a judgment disclosed irrelevant and prejudicial material and other matters relevant to the IAA’s discharge of its functions, the Secretary could provide the IAA with a redacted version of the judgment in which the material a court had found to be irrelevant and prejudicial could be masked. In this regard:

(1)    I accept that the Secretary could have provided the IAA in this case with a redacted version of a judgment, masking the references to the material found by the Full Court found to be irrelevant and prejudicial to the first respondent, and which resulted in the first IAA decision being vitiated on the ground of a reasonable apprehension of bias;

(2)    I accept that the availability of this practical option also means that the Minister’s argument based on the doctrine of necessity cannot be accepted;

(3)    I do not wish to suggest, however, that in order to avoid a reasonable apprehension of bias the Secretary must only provide the IAA with a redacted version of a judgment if it contains references to material a court has found to be irrelevant and prejudicial to the applicant, and which resulted in a first IAA decision being vitiated on the ground of a reasonable apprehension of bias. This had not been done in CNY FCA and yet I concluded that, in all of the circumstances, the reasonable apprehension of bias test was not satisfied;

(4)    I particularly do not wish to propose a course of action which might unintentionally refocus potential disputes into arguments that the Secretary, having decided to redact certain information, ought to have redacted other information from such a judgment; and

(5)    the issue remains whether in all of the circumstances the test for a reasonable apprehension of bias is satisfied or not.

51    In ground 1.2 the Minister contends that having correctly found that the first respondent had been given an opportunity to comment at PJ [35], the primary judge should have found that “the only issue in this respect was whether the [first respondent] had had a reasonable opportunity to comment on the prejudicial information, and not whether he or his representative had actually provided any information to the second IAA on that prejudicial information (cf [PJ] [36])”. At PJ [35] and [36] the primary judge said:

Third, the applicant was given an opportunity to comment on the irrelevant information. In this respect, I do not accept the submission made by the applicant that the opportunity communicated to him by the IAA in its letter dated 6 May 2020 (or otherwise) was restricted to an opportunity to comment on the approach to be adopted towards this information…

…

However, it is also relevant in the particular circumstances of this case that, as events transpired, the applicant did not provide any information to the IAA concerning the irrelevant information with the result that its highly prejudicial character was not diminished. In this aspect, the present case can be distinguished from BYX17 where, at [35(c)], the Full Court identified as one of the relevant circumstances that the applicant’s representative had proffered and the IAA had accepted, ‘new information’ within the meaning of s.473DC to the effect that no charges would be laid against the applicant.

52    In BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41 at [35(c)] the Full Court identified that one relevant circumstance to the question of apprehended bias, on the facts of that case, was that “the appellant’s representative proffered, and the IAA accepted, “new information” within the meaning of s 473DC of the [Migration] Act, to the effect that no charges would be laid”.

53    The Minister’s contention in ground 1.2, properly understood, is that the primary judge in the present case erred in taking into consideration that, despite being given a reasonable opportunity to comment on the irrelevant and prejudicial material, the first respondent did not in fact provide any comment. The only basis upon which it could be said that the primary judge erred in this way is if the fact that the first respondent did not provide any comment in response to the irrelevant and prejudicial material was an irrelevant consideration. However, that cannot be correct; the fact and content of any response to the irrelevant and prejudicial material might be highly relevant to the application of the test for a reasonable apprehension of bias. If, for example, charges were withdrawn or an applicant had been found not guilty of some or other offence, and the IAA was so informed by an applicant, the prospect of any reasonable apprehension of bias arising must be dissipated, as the IAA would be expected to accept that position consistent with the fundamental legal presumption of innocence.

54    The Minister’s concern is apparent in the submission that a “visa applicant cannot enhance the possibility of an apprehension of bias by refusing to provide comments on prejudicial information”. Subject to the required emphasis on an applicant refusing to provide comment, this must be correct. However, this does not mean that any comment, if provided, is irrelevant. Nor does it mean that the circumstances in which an applicant did not comment and whether or not they involve a deliberate refusal to comment despite a reasonable opportunity to do so are irrelevant.

55    If this is not the way in which ground 1.2 should be understood, then the ground must mean that the primary judge gave too much weight to the fact the first respondent did not comment on the irrelevant and prejudicial material and not enough weight to the fact that the first respondent had a reasonable opportunity to do so. If understood in this way, ground 1.2 is subsumed into ground 1.3 which challenges the conclusion that the primary judge reached that in all of the relevant circumstances the test for a reasonable apprehension of bias was satisfied. As the primary judge explained at PJ [37]:

Having considered all of the relevant circumstances in this case and notwithstanding the presence amongst them of factors that might in other cases, operate to ameliorate the apprehended impact of irrelevant information on the statutory review, I have concluded that the powerfully prejudicial nature of the irrelevant information that was referred to the IAA makes a conclusion of apprehended bias irresistible. I have reached this view notwithstanding the undoubted absence of logical connection between that information and the questions which the IAA was statutorily required to determine. This is simply an acknowledgement that in this particular case, a fair-minded and appropriately informed observer might reasonably apprehend that the IAA might not bring a fair, impartial and independent mind to the determination of the matter on its merits because the irrelevant information was capable of operating on the subconscious in a manner that subverted rational or logical analysis.

56    It is apparent from this that the primary judge considered that the nature of the information disclosed in the judgments to be so prejudicial that, taken with the fact that the first respondent did not provide any comment, the other circumstances did not sufficiently weigh against the satisfaction of the test.

57    I agree with the primary judge’s characterisation of the material in the two judgments which the Secretary provided to the differently constituted IAA as irrelevant and “powerfully prejudicial”. In BMT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 328 at [64], Wheelahan J distinguished the Full Court judgment, saying:

I observe that in FSG17, the information that was provided by the Secretary to the Authority was extremely potent, because it included an allegation of sexual offending against a vulnerable child. As recognised by the Full Court in that case, some sexual crimes involving a vulnerable child have the potential to be so prejudicial that a fair-minded lay observer might reasonably consider that it would be difficult for the decision-maker to put the information out of his or her mind.

58    However, I am unable to agree with the primary judge’s conclusion.

59    The reasons that I am unable to agree with the primary judge’s conclusions are that the fair-minded and properly informed lay observer would appreciate that:

(1)    it cannot be inferred that the provision of the two judgments by the Secretary to the differently constituted IAA was in any way gratuitous or intended to improperly affect the IAA’s reasoning;

(2)    rather, it would be inferred that the Secretary provided those two judgments (and not the irrelevant and prejudicial material itself) because the Secretary properly wished to ensure the differently constituted IAA correctly understood its legal obligations;

(3)    it would be inferred from the differently constituted IAA’s dealings with the first respondent that the differently constituted IAA correctly understood, including from FSG FCAFCJ [44], that because the judgments themselves referred to the irrelevant and prejudicial material, the IAA had to inform the first respondent about that material and give the first respondent a reasonable opportunity to comment;

(4)    the IAA did inform the first respondent about the material and did give the first respondent a reasonable opportunity to comment. As the primary judge said at PJ [35], the opportunity was not confined to an opportunity to comment on the approach to be adopted towards the material. Procedural fairness did not require the differently constituted IAA to accede to the demands from the first respondent’s representative that the IAA “provide assurances” as requested in the letter of 8 May 2020. The IAA was entitled to act on the basis of the response from the first respondent’s representative that as the material was irrelevant, it was not in the respondent’s interests to comment on it;

(5)    in its letter of 6 May 2022 the differently constituted IAA made clear that it accepted the material was both highly prejudicial and irrelevant as found in FSG FCAFCJ. The IAA made clear that the material itself had not been provided to it and the IAA considered that the references to the material in the two judgments was not relevant and the IAA did not intend to consider it;

(6)    in its reasons the IAA clearly and unequivocally explained that the references to the material in the judgments were irrelevant and had been disregarded by the IAA;

(7)    while the references to the material in the judgments include that the charge against the respondent was for persistent sexual abuse of a child, that the first respondent had allegedly “met the victim by arrangement at a train station when she was 13 years old and a ward of the State; their sexual relationship continued over three years in circumstances where the [respondent] knew that the victim was under 16 years of age for most of that time” and the first respondent had been refused bail (FSG FCAFCJ at [14] and [15]; see also [38]), in FSG FCAFCJ the Full Court also said at [38] that the material involved an allegation and the first respondent was entitled to the presumption of innocence;

(8)    in contrast to the circumstances in FSG FCAFCJ itself, the differently constituted IAA did not merely disavow any relevance of the material, but also informed the first respondent about the material and gave the respondent a reasonable opportunity to comment on the material;

(9)    the fact of the disclosure of the material by the differently constituted IAA and the giving of a reasonable opportunity to comment to the first respondent are factors which should be given significant weight by the fair minded and properly informed lay person;

(10)    the IAA is not a judicial decision-maker but is a professional decision-making body taken to understand the statutory scheme involved, the consequential irrelevance of the highly prejudicial material, and the requirement of procedural fairness to inform the first respondent about the material and give the first respondent an opportunity to comment on it. In the present case, the differently constituted IAA discharged its responsibilities consistently with these requirements and disavowed the material expressly in its reasons in clear and unequivocal terms;

(11)    while there might be some cases in which the differently constituted IAA has done all that can be done to remove any appearance of apprehended bias but the test is still satisfied, it should be accepted that professional decision-makers are capable of and do routinely put aside irrelevant information without that fact giving rise to any concern that the fair-minded and properly informed lay observer might reasonably consider that the decision-maker might not bring an impartial mind to bear as a result of the potential subconscious effect of the material on the decision-maker’s mind: CNY17 HCA at [28]. If that were not so, the system of IAA review could not function; and

(12)    in all of these circumstances the test that a fair-minded and properly informed lay observer might reasonably consider that the decision-maker might not bring an impartial mind to bear is not satisfied because:

(a)    while the fair-minded and properly informed lay observer appreciates that the differently constituted IAA is not “a passionless thinking machine” (CNY17 HCA at [28]) the observer also appreciates the capacity of a professional decision-maker to put aside the irrelevant, even if the irrelevant is highly prejudicial (as in this case);

(b)    the risk of subconscious bias is itself attenuated if the decision-maker is aware of that risk, and it should be inferred in this case that the differently constituted IAA was so aware given that it clearly understood the import of the judgments it had been given by the Secretary and acted accordingly to expose to the first respondent its receipt of the judgments and the references they contained; and

(c)    the course of conduct of the differently constituted IAA, including its reasons for decision, expose the care which it took to put the irrelevant matters out of its mind.

60    For these reasons I would allow ground 1.3 of the appeal.

61    However, the first respondent also filed a notice of contention to which I now turn.

Failure to consider and legal unreasonableness

62    The first ground in the notice of contention is that the IAA “failed to give proper, genuine and realistic consideration” to the first respondent’s claim that he was stateless because it found he was an Iranian citizen without “active intellectual engagement” with whether or not the respondent could have met any of the available pathways to Iranian citizenship. The second ground is that the IAA’s finding that the first respondent was an Iranian citizen is legally unreasonable as it was based upon illogical or irrational findings or inferences of fact. To my mind, these are effectively a single ground alleging the IAA’s finding of fact that the first respondent was an Iranian citizen is legally unreasonable. If this is so, it then would follow that the IAA’s consideration of the first respondent’s claim to be stateless miscarried as the IAA had found that the respondent was not stateless.

63    As noted, the primary judge rejected an equivalent contention at PJ [47].

64    I am unable to agree with the primary judge’s reasoning at PJ [47]. I consider that an integral part of the IAA’s reasons was the finding at PJ [52] that at some point before he left Iran, the first respondent became an Iranian citizen. This is the critical factual finding because if the first respondent did not become an Iranian citizen before he left Iran, the only logically available conclusion was that the first respondent was stateless. All of the other considerations, undoubtedly generally relevant, cannot alter the fact that in order for the IAA properly and lawfully to be able to assess the first respondent’s application on the basis he was not stateless required the finding that he had become an Iranian citizen in order not to be legally unreasonable.

65    To put it another way, given the way in which the IAA reasoned, it could not matter that the first respondent did not “present as someone who has a lived adult experience of being a stateless registered or unregistered refugee in Iran”, gave evidence “plagued by internal inconsistencies, vague evidence and documents of questionable authenticity”, gave evidence that was not plausible about his departure from Iran, was not “a credible witness as to matters of his status and experiences arising from such in Iran, nor the circumstances of his departure” as the IAA recorded at [50]. None of these things could matter to the finding that the first respondent had become an Iranian citizen because:

(1)    the IAA accepted that the first respondent was “once a stateless Faili Kurd and registered refugee in Iran” (at [51] of its decision);

(2)    the IAA identified the ways in which a male person such as the first respondent could become an Iranian citizen at [48] as: (a) having Iranian paternal ancestry, (b) by maternal descent for those who turn 18 having been born in Iran to Iranian mothers, (c) by marriage (although in this regard the delegate had also identified that the marriage pathway was available only to a foreign woman marrying an Iranian male), or (d) by naturalisation for those who are at least 18 years of age, have resided in Iran for five years, are not military service escapees, have not been convicted of a major crime in any country, and have sufficient qualifications or capital to invest in and run a business in Iran;

(3)    the IAA found at [32] that the first respondent and his family are “Faili Kurds and that his parents formerly lived in and were expelled from Iraq”. The IAA said that it accepted that the first respondent and his family “have lived in Iran since at least his infancy and that he was initially stateless, either by virtue of his own citizenship being stripped, or that of one or both of his Iraqi parents”; and

(4)    the IAA found at [33] that the first respondent “does not have Iraqi citizenship, nor a right to re-enter and reside there”.

66    In these circumstances, in order to find that the first respondent had become an Iranian citizen at some time before he left Iran, it was logically necessary for the IAA to make some intermediate findings capable of rationally leading to the conclusion that his accepted status as a stateless Faili Kurd and registered refugee in Iran (that is, a non-citizen of Iran) had changed to make him a citizen of Iran by one of the available methods. Instead, the IAA said at [52] that it could not “with any certainty, determine which of the four possible pathways to Iranian citizenship the [first respondent] may have taken”, but that the first respondent:

… has not satisfied me that he is stateless, or that he left Iran on a fraudulently obtained Iraqi passport. He has not satisfied me that he was ineligible for citizenship, or ultimately, that his claim of denial of Iranian citizenship is credible…

67    It is one thing to conclude that the first respondent had not proved he was stateless or that his denial of Iranian citizenship was not credible. It is another to conclude that the first respondent is in fact an Iranian citizen with the consequence that his claims that if he is returned to Iran he fears harm as a stateless, unregistered Faili Kurd refugee were unfounded. The IAA could not rationally reach a finding that the first respondent was in fact an Iranian citizen without making rational intermediate findings that the first respondent: (a) had Iranian paternal ancestry, or (b) had become naturalised. This is because it is clear from the material before the IAA and the IAA’s other findings that the first respondent could not have become an Iranian citizen by either marriage (as the respondent is male) or by maternal ancestry (as he was not born in Iran).

68    As to possible route (a), a finding that the first respondent had Iranian paternal ancestry would then have had to be reconciled with the IAA’s description of the first respondent’s parents as “Iraqi parents”. While the Minister is right that the IAA did not find that the first respondent’s father was an Iraqi citizen, that is not the point. The point is that a positive finding of the first respondent having once been a stateless Faili Kurd in Iran as a registered refugee from Iraq and having become an Iranian citizen by possible route (a) required a logical finding that the first respondent had Iranian paternal ancestry. No such finding was made.

69    As to possible route (b), a finding that the first respondent had become naturalised required a logical finding that the first respondent had satisfied the additional requirements of having sufficient qualifications or capital to invest in and run a business in Iran. No such finding was made.

70    For these reasons, it was legally unreasonable for the IAA to find that the first respondent was an Iranian citizen. The IAA’s reasoning process did not logically permit this finding. Rather, the IAA’s reasoning process permitted only a finding that the first respondent claimed, but had not proved, that he was stateless. Consequently, the IAA had to assess the first respondent’s claim on the basis that the first respondent had articulated, that he was stateless. In the circumstances the IAA could not ignore that claim. In so concluding I am not suggesting that:

(1)    the IAA could not have logically made intermediate findings relevant to possible routes (a) or (b) above. For present purposes, what is relevant is that the IAA did not make those intermediate findings. Whether the IAA could reasonably do so or not on the material is not in issue before me and I cannot make any observation about those issues; or

(2)    the IAA could only make findings on the civil standard of the balance of probabilities. That is not correct: Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [36]–[37] (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 282–283) and [62].

71    In his submissions, the Minister noted that the IAA could not “with any certainty” determine which of the four possible pathways to Iranian citizenship the first respondent may have taken: at [52]. The IAA did say this, but the consequence of that conclusion was that the IAA could not then find with any greater degree of certainty that the first respondent was in fact an Iranian citizen. On the IAA’s reasoning (which, I accept, may not have been the only possible course of reasoning available) it would then have followed that the IAA could not simply assess the first respondent’s claims on the basis he was in fact an Iranian citizen. Rather, the kind of nuanced complexity of reasoning which Sackville J described in Rajalingam at [62] would have been required. Justice Sackville there said:

… it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT [Refugee Review Tribunal] is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant’s case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.

72    In the present case, and on the IAA’s process of reasoning, the relevant event was that the first respondent had changed status from a stateless Faili Kurd to an Iranian citizen. As noted, given that the IAA could not find that this change in status had occurred by any one of the four available pathways “with any certainty” it logically could not find that the first respondent was an Iranian citizen with any greater degree of certainty (yet it did so on a legally unreasonable basis). As the occurrence or non-occurrence of that event (the change in status) was of fundamental importance to the first respondent’s claims to have a well-founded fear of persecution, the IAA would then have had to undertake the required reasonable speculation assessing the first respondent’s claims on the basis that the event did not occur. This the IAA did not do. And nor did it adopt possible alternative methods of reasoning in accordance with possible routes (a) or (b) as described above.

73    I accept that the present circumstances are different from those considered in FSG FCAFCJ. In FSG FCAFCJ the Full Court concluded that the first IAA decision was legally unreasonable as a result of the IAA’s reliance on a DFAT report which indicated that Faili Kurd refugees who present documentary evidence of Iranian paternal ancestry are able to obtain Iranian citizenship in circumstances where “there was no evidence that the [respondent] had Iranian paternal ancestry”, the first respondent “claimed that his paternal ancestry was Iraqi and there was no evidence inconsistent with that claim”, and the IAA “made no finding to the contrary”.

74    The ultimate problem in the present case, however, is the same. The finding in the present case that the first respondent was an Iranian citizen had no logical or rational foundation. As a result, the IAA could not proceed to determine the first respondent’s claims on the basis that he was an Iranian citizen.

Conclusions

75    For these reasons, while the Minister’s appeal is sound, the first respondent’s notice of contention is also sound. It follows that the orders made by the primary judge quashing the decision of the differently constituted IAA and requiring another differently constituted IAA to determine the review according to law should not be disturbed. In this latter regard, I appreciate that because I do not accept the reasonable apprehension of bias ground it is not necessary that the writ of mandamus require another differently constituted IAA to determine the review according to law. However, in the circumstances, I can see no reason to disturb that order on a discretionary basis.

Associate:

Dated:    20 May 2022